The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ESTATE OF EITAM HENKIN, et al., :
: MEMORANDUM DECISION AND
Plaintiffs, : ORDER
:
- against - : 19-cv-5394 (BMC)
:
KUVEYT TÜRK KATILIM BANKASI A.Ş., :
:
Defendant. :
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COGAN, District Judge.
This case is before the Court on plaintiffs’ motion for reconsideration of this Court’s
Memorandum Decision and Order granting defendant’s motion to dismiss. The Court denied
jurisdictional discovery, dismissed the case for lack of personal jurisdiction over defendant
Kuveyt Turk Katilimi Bankas, A.S. (“Kuveyt Turk” or “the Bank”), and did not reach the merits
of the Bank’s Rule 12(b)(6) challenge to the complaint. Upon reconsideration, the Court’s prior
decision to dismiss for lack of personal jurisdiction is VACATED. Kuveyt Turk’s Rule 12(b)(6)
motion is denied. As to personal jurisdiction, decision on that issue is deferred pending
discovery.
SUMMARY OF AMENDED COMPLAINT
This action arises after multiple victims were killed in terrorist attacks in the West Bank
in 2015 and 2018. Their estates, survivors, and heirs bring a claim under the civil liability
provision of the Anti-Terrorism Act (the “ATA”), 18 U.S.C. § 2333, as amended by the Justice
Against State Sponsors of Terrorism Act (“JASTA”), against Kuveyt Turk. Kuveyt Turk is a
bank headquartered in Turkey with no presence in the United States. The Bank maintained
“correspondent” bank accounts in the United States with New York banks in order to make US-
dollar denominated transfers.
Plaintiffs allege that Kuveyt Turk aided and abetted Hamas, the terrorist organization
responsible for the killings. The Bank maintained foreign bank accounts for three parties
relevant to this action: (1) the Foundation for Human Rights and Freedoms and Humanitarian
Relief (“IHH”), Hamas’s “primary Turkish fundraiser;” (2) Islamic University Gaza (“IUG”), a
“Hamas institution;” and (3) Jihad Yaghmour, a “high-ranking HAMAS operative and convicted
murderer.” IHH, IUG, Yaghmour, and even the Republic of Turkey have strong ties to Hamas
and have repeatedly supported the terrorist organization.
IHH is “the most prominent non-governmental fundraising support organization in
Turkey for HAMAS.” The organization is a member of the “Union of Good,” which has
funneled large sums of money to Hamas as a large part of the Hamas fundraising network.
Hamas has publicly linked itself to the Union of Good through a 2007 speech given by then-
Hamas leader Khalid Mishal publicly thanking the Union of Good for its support, the inclusion
of a link to the Union of Good’s fundraising page on Hamas’ political bureau’s official website,
and through the Hamas leaders who have openly served as the Union of Good’s executive
leadership. In February 2002, Israel’s Minister of Defense designated the Union of Good as
“part of the Hamas organization or supporting it and strengthening its infrastructure.” A few
years later, in November 2008, the U.S. Treasury Department designated the Union of Good as
an SDGT, describing how the organization
acts as a broker for HAMAS by facilitating financial transfers between a web of
charitable organizations – including several organizations previously designated
under E.O. 13224 for providing support for Hamas – and Hamas-controlled
organizations in the West Bank and Gaza. The primary purpose of this activity is
to strengthen Hamas’ political and military position in the West Bank and Gaza
including by: (i) diverting charitable donations to support Hamas members and
the families of terrorist operatives; and (ii) dispensing social welfare and other
charitable services on behalf of Hamas.
Notably, the Treasury Department identified that “[f]unds raised by the Union of Good affiliates
have been transferred to Hamas-managed organizations in the West Bank and Gaza” and also
diverted to “compensate[] Hamas terrorists by providing payments to the families of suicide
bombers.”
In July 2008, the Israeli Defense Minister signed a public order banning IHH from Israel
due to its membership in the Union of Good and its role as “part of Hamas’s fundraising
network.” By December 2012, the Israeli government had designated IHH as a Terrorist
Organization.
For several years before the attacks that injured plaintiffs, IHH was recognized in Turkey
as an organization that provided financial support to Hamas. In 2009, IHH sent a Turkish
representative named Ezat Shahin to open an IHH branch office in Gaza, where Shanin operated
through known Hamas institutions to funnel thousands of U.S. dollars to the terrorist
organization. Within a year, he was arrested by the Israel Security Agency and charged with
funding terrorism and working with Hamas. The same year, IHH and other Turkish associations
organized a public demonstration in Turkey’s capital in support of Hamas.
In 2010, IHH purchased three ships, including a passenger ship called the Mavi Marmara,
to participate in the so-called Gaza Freedom Flotilla and attempt to break Israel’s naval blockade
of Gaza. As was reported in American and Turkish media, Hamas leader Ismail Haniyeh made a
public visit to the Mavi Marmara in Istanbul in “a show of solidarity.” While attempting to
circumvent Israel’s blockade, the Mavi Marmara was boarded by Israeli commandos, who were
quickly attacked by IHH supporters armed with knives, axes, chains, and clubs. The Israeli
boarding party responded with lethal force and several IHH supporters aboard the ship were
killed. This deadly incident was widely covered by the international media.
IUG, although partially operating as a legitimate educational institution, is also deeply
connected with Hamas. Since the 1990s, IUG has served as a principal source for recruitment
into Hamas’ ranks in Gaza, including the Qassam Brigades – Hamas’ terrorist apparatus. A
former dean of IUG referred to it as “the main stage for preparing, recruiting and directing the
faithful among the young” and noted that “the IUG has sacrificed both men and woman shaheeds
[martyrs].” This quote was posted on one of Hamas’ official websites. On May 29, 2007, the
U.S. Department of Justice publicly identified IUG as part of Hamas’ social infrastructure by
listing it as an unindicted co-conspirator in a federal criminal prosecution against a separate
charity and its officers for allegedly providing millions of dollars to Hamas.1 That same year, an
Arabic newspaper, al-Mustaqbal, described the university as “the main stronghold of Hamas in
Gaza.”
Numerous Hamas leaders had close ties to IUG, further suggesting that the university was
an alter ego of Hamas. Hamas’ external (and supreme) leader, Ismail Haniyeh, once served as
the dean of the university, gave a public address at IUG in January 2010, and was the
university’s commencement speaker in June 2013. As of 2014, IUG’s supervisory board was
headed by Abu-Ubayadah Khayri Hafiz Al-Agha (“Al-Agha Jr.”), who was designated an SDGT
by the U.S. Treasury Department for being “a senior Hamas financial officer involved in the
investment, funding and money transfers for Hamas in Saudi Arabia.” The U.S. Treasury
Department made this designation before the attacks that injured plaintiffs. Another senior
Hamas leader who served as the Minister for Telecommunications for the Hamas-run
1 See United States v. Holy Land Foundation, No. 04-cr-240, Dkt. No. 656 (N.D. Tex. May 29, 2007).
government in Gaza, Jamal N. al-Khoudary, also served as the Chairman of the Board of
Trustees of IUG from 1993 until 2014. Khalil Isma’il Ibrahim al-Hayya, the deputy of Hamas’
senior leader in Gaza, Yahya Sinwar, lectured in Islamic Law at IUG, delivered a speech at IUG
in September 2014, accepted a diploma for his “martyred” son, and visited IUG publicly with
Haniyeh in 2017.
Just as with IHH, the Turkish media had reported on IUG’s ties to Hamas before the
attacks that injured plaintiffs. In 2007, a major Turkish newspaper reported that a weapons
cache was uncovered on IUG’s campus. The Qassam Brigades had long used IUG’s facilities for
terrorist activities and training, such as storing weapons on its campus, using its laboratories to
develop and manufacture weapons, and using its rooms to hold meetings for Hamas leadership
and operatives. In 2008, a Turkish news website described the university as “a cultural symbol
of Hamas.” In September 2015, the country’s media reported that Al-Agha Jr., the head of
IUG’s supervisory board, had been designated as a senior Hamas fundraiser by the U.S. Treasury
Department.
The third customer of Kuveyt Turk included in plaintiffs’ amended complaint, Jihad
Yaghmour, was sentenced by an Israeli military court to thirty years in prison for his
participation in the high-profile 1994 kidnapping and killing of an Israeli soldier. Yaghmour was
freed as part of a prisoner exchange between Israel and Hamas. Turkey accepted Yaghmour as
one of eleven Palestinian prisoners the country took in as part of the prisoner exchange. Once
released, Yaghmour remained in Turkey and served as Hamas’ liaison with Turkish authorities.
Yaghmour’s connection to Hamas was published in the Turkish media. For example, in
September 2015, Turkish media reported that Yaghmour participated in the Turkish president’s
political party meeting with a delegation of Hamas members that included Khalid Mishal and
Mousa Abu Marzook, both designated SDGTs by the U.S. Treasury Department.
Kuveyt Turk employs several mechanisms to ostensibly avoid doing business with
terrorist organizations. Its Risk, Control and Compliance Department claims it engages in (a)
suspicious activity reporting, (b) transaction monitoring, (c) adverse information screening, and
(d) sanctions compliance. The Bank further claims that its Anti-Money Laundering and
Combating Finance of Terrorism Policy prohibits it from maintaining a business relationship
with “[t]hose who are in the lists of supporters of money laundering and/or financing terrorism
prepared by local regulators or international bodies and institutions” and that it monitors “the
client and his/her activities while the client-relationship continues.”
Despite these prophylactic measures, from at least 2012 through 2016, Kuveyt Turk
maintained several bank accounts for Yaghmour, IHH, and IUG. Some of these accounts were
Eurodollar accounts, which were used to transfer substantial funds through correspondent bank
accounts in the United States.2 In the years immediately preceding the acts of terrorism at issue
here, Kuveyt Turk transferred at least hundreds of thousands of Eurodollars in the name of IUG,
at the direction of two individuals mentioned above: Jamal N. al-Khoudary, the high-ranking
Hamas official who served as the Chairman of IUG’s Board of Trustees; and Al-Agha Jr., the
U.S. designated SDGT identified as a Hamas fundraiser, who served as the head of IUG’s
supervisory board.
Plaintiffs claim that Kuveyt Turk, by maintaining multiple bank accounts for a notorious
Hamas operative, Hamas’ most prominent fundraiser in Turkey, and a key Hamas institution in
2 Eurodollars are U.S. dollars that have been deposited with a banking institution located outside the United
States. Citibank, N.A. v. Wells Fargo Asian Ltd., 495 U.S. 660, 662-63 (1990). The vast majority of Eurodollar
transfers between banks are cleared and settled in New York.
Gaza, understood that it was providing vital financial services to the terrorist organization
responsible for the deaths and injuries of plaintiffs. Plaintiffs thus bring a sole cause of action
under JASTA against the Bank for allegedly aiding and abetting Hamas by knowingly providing
substantial assistance to Hamas while the Bank was generally aware of its role in a continuing
criminal enterprise from which terrorist and violent activities were a foreseeable consequence.
PROCEDURAL HISTORY
Kuveyt Turk has moved to dismiss this action twice. On its first motion to dismiss, the
Bank recognized that lack of personal jurisdiction as a basis for dismissal might best be decided
after discovery on the issue. Kuveyt Turk explained that the parties had agreed that “this Court
should first consider the Bank’s arguments regarding failure to state a claim” and that “[i]f the
Court holds that dismissal is unwarranted after considering the allegations in the Complaint,” the
Bank’s “personal jurisdiction defense should be reconsidered by the Court with all other
applicable arguments at the time a summary judgment motion is filed.” The Court denied
Kuveyt Turk’s motion to dismiss, except as to personal jurisdiction, on which the Court deferred
decision pending discovery in accordance with the parties’ agreement.
Kuveyt Turk moved to file an interlocutory appeal with the Second Circuit, which this
Court granted. The question presented to the Second Circuit was:
Under the ATA/JASTA, what amount and type of media coverage, governmental
pronouncements, and other publicly available information – if any – is sufficient
circumstantial evidence for a plaintiff to plead a plausible claim that a financial
institution was aware that, by providing financial services to a client, it was
thereby playing a role in violent or life-endangering activities as an aider and
abettor?
The Second Circuit granted Kuveyt Turk’s motion to file an interlocutory appeal, but
then dismissed it as improvidently granted and remanded the case in light of the Second
Circuit’s “subsequent decisions in Honickman v. BLOM Bank SAL, 6 F.4th 487 (2d Cir.
2021); Kaplan v. Lebanese Canadian Bank, SAL, 999 F.3d 842 (2d Cir. 2021); and Weiss
v. Nat’l Westminster Bank, PLC., 993 F.3d 144 (2d Cir. 2021), cert. denied, 142 S. Ct.
2866 (2022).”
Plaintiffs filed an amended complaint and Kuveyt Turk filed its second motion to
dismiss. Unlike the Bank’s first motion to dismiss, this motion did not acknowledge the
parties’ agreement to delay a decision on personal jurisdiction until after discovery.
Instead, Kuveyt Turk moved to dismiss plaintiffs’ amended complaint based on lack of
personal jurisdiction and failure to state a claim. Plaintiffs took issue with Kuveyt Turk’s
departure from the parties’ prior agreement to defer the personal jurisdiction issue until
after discovery, but nevertheless raised arguments in support of exercising personal
jurisdiction over it. This Court granted the Bank’s motion to dismiss for lack of personal
jurisdiction.
In plaintiffs’ motion for reconsideration now pending before the Court, plaintiffs
assert that they have pled facts sufficient to establish personal jurisdiction. Plaintiffs also
argue that this Court should “return to its original assessment in this case and resolve
personal jurisdiction . . . after granting jurisdictional discovery.”
Because this Court previously held that jurisdictional discovery was available to
plaintiffs, and Kuveyt Turk consented to such an approach, plaintiffs’ motion for
reconsideration is granted.
DISCUSSION
I. Motion for Reconsideration
To succeed on a motion for reconsideration, the moving party must “point to controlling
decisions or data that the court overlooked – matters, in other words, that might reasonably be
expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir. 1995) (citations omitted). “A motion for reconsideration should be granted
only when the [moving party] identifies an intervening change of controlling law, the availability
of new evidence, or the need to correct a clear error or prevent manifest injustice.” Kolel Beth
Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013)
(internal quotation marks and quotation omitted). Motions for reconsideration “should not be
granted where the moving party seeks solely to relitigate an issue already decided.” Shrader, 70
F.3d at 257.
In granting Kuveyt Turk’s second motion to dismiss for lack of personal jurisdiction, the
Court overlooked a crucial fact: the parties, as endorsed by this Court, had already agreed that
plaintiffs would receive jurisdictional discovery before the Court would decide the question of
personal jurisdiction. Kuveyt Turk did not waive its lack of personal jurisdiction defense, having
raised the issue in both motions to dismiss. However, the Bank consented to this Court’s
exercise of jurisdiction over it for the purposes of, at least, jurisdictional discovery, by
agree[ing] and respectfully submit[ting] that this Court should first consider the
Bank’s arguments regarding failure to state a claim, and agree[ing] that any
discovery on personal jurisdiction should proceed simultaneously with any
discovery on the merits in the event that this Court holds both that the case should
not be dismissed for failure to state a claim and that it cannot rule on Defendant’s
Rule 12(b)(2) motion until discovery on that issue has taken place.
The Court did just that on Kuveyt Turk’s first motion to dismiss: it denied the motion for
failure to state a claim and deferred decision on the motion for lack of personal jurisdiction until
after discovery. Thus, on Kuveyt Turk’s second motion to dismiss the Court should have
honored the parties’ agreement and Kuveyt Turk’s consent to a delay in determining the issue of
personal jurisdiction by “first consider[ing] the Bank’s arguments regarding failure to state a
claim” and then determining the personal jurisdiction question after plaintiffs received the
benefit of discovery.
For the reasons stated in its prior order, the Court still has some skepticism that
jurisdictional discovery will permit plaintiffs to establish personal jurisdiction over Kuveyt Turk.
It is hard to see in the amended complaint “any relationship between the Bank’s contacts with the
United States and the terrorist attacks giving rise to their claim.” Est. of Henkin v. Kuveyt Turk
Katilim Bankasi A.S., No. 19-cv-5394, 2023 WL 4850999, at *3 (E.D.N.Y. July 28, 2023). It is
unclear that any such connection exists. Nevertheless, the parties agreed to the resolution of this
issue after plaintiffs receive jurisdictional discovery, which could uncover such a connection.
The Court agreed to abide by this agreement, and should have continued to adhere to it in
deciding defendant’s second motion to dismiss by considering defendant’s failure to state a claim
arguments first, and deferring decision on the personal jurisdiction issue until after jurisdictional
discovery.
In opposition to plaintiffs’ motion for reconsideration, Kuveyt Turk states that the
parties’ agreement to reserve the personal jurisdiction issue until after discovery was only
reached for purposes of the Bank’s first motion to dismiss. Kuveyt Turk asserts that the parties
did not enter into any such agreement in connection with its second motion to dismiss. That is
not at all clear, and in any event, this Court adopted the parties’ initial agreement as its own
procedure for adjudicating this case in denying the Bank’s first motion to dismiss. It would be
unjust to deprive plaintiffs of the discovery opportunity this Court previously saw fit to grant,
especially without first considering whether plaintiffs survive the Bank’s alternative ground for
dismissal, that is, failure to state a claim.
To prevent manifest injustice, the Court finds that reconsideration of its Memorandum
Decision and Order is warranted. In compliance with the parties’ agreement and the Court’s
previous approach, the Court first considers the Bank’s arguments regarding plaintiffs’ failure to
state a claim. The Court does so, following the Second Circuit’s instructions, “[i]n light of [the
Second Circuit’s] decisions in Honickman v. BLOM Bank SAL, 6 F.4th 487 (2d Cir. 2021);
Kaplan v. Lebanese Canadian Bank, SAL, 999 F.3d 842 (2d Cir. 2021); and Weiss v. Nat’l
Westminster Bank, PLC., 993 F.3d 144 (2d Cir. 2021), cert. denied, 142 S. Ct. 2866 (2022).”
Finding Kuveyt Turk’s failure to state a claim arguments unavailing, the Court will grant
jurisdictional discovery, to proceed simultaneously with discovery on the merits, and decide the
issue of personal jurisdiction at the summary judgment stage.
II. Motion to Dismiss for Failure to State a Claim
A. Legal Standard
Plaintiffs’ amended complaint “must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged,” id. (citation omitted), in this case aiding
and abetting a foreign terrorist organization in violation of 18 U.S.C. § 2333(d).
To be liable for aiding and abetting a foreign terrorist organization, “(1) the party whom
the defendant aids must perform a wrongful act that causes an injury, (2) the defendant must be
generally aware of his role as part of an overall illegal or tortious activity at the time that he
provides the assistance, and (3) the defendant must knowingly and substantially assist the
principal violation.” Kaplan, 999 F.3d at 856 (quoting Halberstam v. Welch, 705 F.2d 472, 477
(D.C. Cir. 1983)) (internal quotation marks omitted). There is no dispute here as to the first
element of liability, that the party whom the Bank allegedly aided, Hamas, committed the attacks
that injured and killed plaintiffs.
For the second prong, the general awareness requirement, plaintiffs must allege (1) that
the “Bank was aware of [its customers’] connections with Hamas before the relevant attacks; and
(2) the [customers] were so closely intertwined with Hamas’s violent terrorist activities that one
can reasonably infer [the Bank] was generally aware of its role in unlawful activities from which
the attacks were foreseeable.” Honickman, 6 F.4th at 501 (quoting Kaplan, 999 F.3d at 860)
(cleaned up). The Bank’s customers “do not themselves need to be engaged in violent or
terrorist acts.” Id. at 499 n.15 (cleaned up). Addressing the question presented to the Second
Circuit on interlocutory appeal from this Court’s Memorandum Decision and Order denying
Kuveyt Turk’s first motion to dismiss, “[a] complaint is allowed to contain general allegations as
to a defendant’s knowledge . . . because a plaintiff realistically cannot be expected to plead a
defendant’s actual state of mind. . . . However, plaintiffs are required to include allegations of
the facts or events they claim give rise to an inference of knowledge.” Kaplan, 999 F.3d at 864
(internal quotation marks, quotation, and citations omitted).
The third requirement for aiding and abetting liability, that the defendant knowingly and
substantially assist the principal violation, requires that the principal violation “be foreseeable
from the illegal activity that the defendant assisted; knowing and substantial assistance to the
actual injury-causing act – here, Hamas’s attacks – is unnecessary.” Honickman, 6 F.4th at 499
(citing Halberstam, 705 F.2d at 477). To qualify as “substantial” assistance, courts consider the
following six factors: “(1) the nature of the act encouraged, (2) the amount of assistance given by
defendant, (3) defendant’s presence or absence at the time of the tort, (4) defendant’s relation to
the principal, (5) defendant’s state of mind, and (6) the period of defendant’s assistance.”
Kaplan, 999 F.3d at 856 (quotation omitted). “[T]hese factors are ‘variables,’ . . . and the
absence of some need not be dispositive.” Id. (quoting Halberstam, 705 F.2d at 483).
As the Second Circuit directed in remanding Kuveyt Turk’s first motion to dismiss, this
Court’s analysis is guided by the Second Circuit’s decisions in Weiss, 993 F.3d 144; Kaplan, 999
F.3d 842; and Honickman, 6 F.4th 487. In Weiss, the Second Circuit affirmed the district court’s
denial of the plaintiffs’ motion to amend their complaint to assert, inter alia, a JASTA aiding and
abetting claim. Because the parties had already engaged in “some 10 years of pretrial
discovery,” but “the record was [still] insufficient to show that the bank had been knowingly
providing substantial assistance to . . . Hamas or that it was generally aware that it was playing a
role in Hamas’s acts of terrorism,” plaintiffs’ amendment of their complaint would have been
futile. Kaplan, 999 F.3d at 861 (citing Weiss, 993 F.3d at 163-67). This insufficient record
“included evidence that plaintiffs’ expert said the charities to which [the bank] transferred funds
as instructed by Interpal [(its customer)] performed charitable work and that, as plaintiffs
admitted, Interpal did not indicate to [the bank] that the transfers were for any terroristic purpose;
and plaintiffs proffered no evidence that the charities funded terrorist attacks or recruited persons
to carry out such attacks.” Weiss, 993 F.3d at 166.
In Kaplan, the Second Circuit reversed the district court’s granting of the defendant’s
motion to dismiss because plaintiffs plausibly alleged the elements of a JASTA aiding and
abetting claim. Specifically, in satisfying the general awareness element, plaintiffs included
statements connecting the defendant bank’s customers to Hezbollah that “were alleged to have
been made in a particular time period (i.e., [leading up to the attack]), and were specific as to the
status of the speaker . . . , the circumstances in which the statements were made . . . , and the
other specific media in which they were made.” Kaplan, 999 F.3d at 864. Plaintiffs also alleged
that one of the customer’s “connection with Hizbollah was reported in several English-language
publications” and that “Hizbollah has been a terrorist organization headquartered in Lebanon
since 1982,” the same country the bank was headquartered in. Id. at 864-65. The bank’s
“provision to Hizbollah affiliates, beginning no later than 2003, of banking services that
permitted the laundering of money – nearly half a million dollars or dollar equivalents per day –
in violation of regulatory restrictions meant to hinder the ability of FTOs to carry out terrorist
attacks” satisfied the knowing and substantial assistance requirement.
Lastly, in Honickman, plaintiffs did not plead sufficient facts to survive a motion to
dismiss for failure to state a claim. As to general awareness, plaintiffs pled that one of the
defendant bank’s customers was designated by the U.S. Treasury Department as an SDGT, but
only after the attacks at issue in the case; another customer was designated as an SDGT, but only
after the bank stopped providing banking services to that customer; and the last customer was
designated by Israel as being “part of the Hamas organization or supporting it and strengthening
its infrastructure” in 2002, but the complaint did not allege the timeframe in which the customer
had an account with the defendant bank. Complaint, Honickman v. BLOM Bank SAL, 432 F.
Supp. 3d 253 (E.D.N.Y. 2020), ECF No. 1. Plaintiffs’ remaining allegations similarly failed to
connect the bank’s customers to Hamas before the attacks that injured the plaintiffs and while the
bank was providing financial services to the customers. Because of “[t]he complaint’s failure to
support a reasonable inference that [the defendant bank] knew of the Three Customers’ links to
Hamas,” the Second Circuit did not address whether the other elements of JASTA aiding and
abetting liability were met. Honickman, 6 F.4th at 503.
B. General Awareness
Applying these standards to the instant case, plaintiffs’ amended complaint contains
sufficient factual content, accepted as true, to allow the Court to conclude both that Kuveyt Turk
was aware of its customers’ connections to Hamas before the attacks that injured and killed
plaintiffs and that the customers “were so closely intertwined with Hamas’s violent terrorist
activities that one can reasonably infer [the Bank] was generally aware of its role in unlawful
activities from which the attacks were foreseeable.” Id. at 501 (quoting Kaplan, 999 F.3d at 860)
(cleaned up).
Plaintiffs plead, as to IHH, that it was the most prominent non-governmental fundraiser
for Hamas in Turkey, that it was a member of the Union of Good, an organization designated by
the U.S. Treasury Department as an SDGT in 2008 due to its financial support of Hamas; that
IHH was designated as a Terrorist Organization by the Israeli government in 2012 for its support
provided to Hamas; that IHH organized a public demonstration in Turkey’s capital in support of
Hamas in 2009; and that it participated and used violence in the internationally-covered Gaza
Freedom Flotilla in 2010, supported by Hamas. Plaintiffs’ amended complaint specifies the time
period, sources, and circumstances of these facts, which more than plausibly allege that IHH’s
connection to Hamas and close integration with Hamas’ violent terrorist activities were “openly,
publicly, and repeatedly” acknowledged by Hamas, English-language publications, Turkish
publications, as well as multiple governments. Kaplan, 999 F.3d at 864 (citation omitted). This
information was public while Kuveyt Turk continued to provide banking services to IHH and
before the attacks that killed and injured plaintiffs.
Given this widespread, public knowledge of IHH’s connectedness with Hamas’ violent
terrorist activities and Kuveyt Turk’s mechanisms in place to avoid doing business with terrorist
organizations, it “defies credulity that [the defendant] did not know that something illegal was
afoot.” Halberstam, 705 F.2d at 486. Just as in Halberstam, which Congress “specified as the
proper legal framework for assessing” JASTA aiding and abetting claims, Kaplan, 999 F.3d at
845, the Bank “knew about and acted to support [a criminal’s] illicit enterprise,” which
“establish[es] that [the Bank] had a general awareness of [its] role in a continuing criminal
enterprise.” Halberstam, 705 F.2d at 488.
Regarding IUG, plaintiffs plead that, as reported on Hamas’ websites, IUG served as a
principal source for recruitment into Hamas, including the Qassam Brigades, Hamas’ terrorist
apparatus; Arabic media described IUG as “the main stronghold of Hamas in Gaza;” the U.S.
Department of Justice listed IUG as an unindicted co-conspirator in a federal criminal
prosecution involving the alleged provision of millions of dollars to Hamas; Hamas leaders ran
or had positions of power at IUG; and Turkish news described IUG as “a cultural symbol of
Hamas” and reported on a weapons cache uncovered on IUG’s campus. These are the types of
allegations the Second Circuit has deemed sufficient to allege a bank’s knowledge of its
customer’s connections with a terrorist organization and the bank’s awareness that, through its
provision of banking services to that customer, it was playing a role in the terrorist organization’s
terrorist activities. See Kaplan, 999 F.3d at 864-65.
IUG’s storage of weapons for Hamas, recruitment of martyrs and other terrorists for
Hamas, and its role as a co-conspirator in providing millions of dollars to Hamas were
sufficiently common, public knowledge that plaintiffs plausibly allege that IUG was “so closely
intertwined with Hamas’s violent terrorist activities that one can reasonable infer [Kuveyt Turk]
was generally aware of its role in unlawful activities from which the attacks were foreseeable.”
Honickman, 6 F.4th at 501 (quoting Kaplan, 999 F.3d at 860) (cleaned up). Unlike in Weiss,
993 F.3d at 166, in which the plaintiffs “proffered no evidence that the charities funded terrorist
attacks or recruited persons to carry out such attacks,” both allegations are plausibly made here.
Finally, plaintiffs plead that Jihad Yaghmour, formerly convicted by an Israeli military
court for his participation in kidnapping and killing an Israeli soldier, served as Hamas’ liaison
with Turkish authorities. Plaintiffs also plead that this role was publicly known – for example, in
September 2015, Turkish media reported on Yaghmour’s participation in meetings with Hamas
members including two designated SDGTs by the U.S. Treasury Department. As with IHH and
IUG, plaintiffs specify the time period, source, and circumstances of statements and events tying
Yaghmour to Hamas and its violent terrorist activities.
Given plaintiffs’ thorough pleadings connecting Kuveyt Turk’s customers to Hamas, and
specifically Hamas’ violent terrorist activities, this is not a situation in which the Bank’s
customers were “believed by some to have links” to Hamas, which would be insufficient to
establish the Bank’s general awareness of its customers’ connections with Hamas. Siegel v.
HSBC N. Am. Holdings, Inc., 933 F.3d 217, 224 (2d Cir. 2019) (emphasis added). National
governments, English-language newspapers, Turkish media, and Hamas itself publicized these
connections. The fact that IHH and IUG also had “legitimate roles” in addition to their close ties
to Hamas’ violent terrorist activities does not change this analysis, because it does not undermine
the widespread, public information that these organizations were connected to Hamas’ violent
terrorist activities.
Nor does the fact that some of plaintiffs’ sources connecting Jihad Yaghmour to Hamas
postdate the alleged provision of financial services, the attacks, or both. In contrast with the
complaint in Honickman, plaintiffs also include sufficient facts that predate the attacks and
coincide with the Bank’s provision of financial services to Yaghmour such that plaintiffs
plausibly allege an inference of the Bank’s knowledge. Disregarding allegations that are
irrelevant to the Bank’s state of mind “at the time that it provided banking services,” Honickman,
6 F.4th at 501, plaintiffs still plead sufficient facts to satisfy the general awareness requirement
on a motion to dismiss for failure to state a claim.
Kuveyt Turk argues that, if plaintiffs’ amended complaint is deemed sufficient to satisfy
the general awareness requirement, this Court would be making an “unworkable” assumption
that “Kuveyt Turk was aware of the allegedly public documents Plaintiffs cite” and that “the
Bank was required to accept them as gospel.” The Bank’s argument that these assumptions are
“unworkable” is foreclosed by the Second Circuit: “as we explained in Kaplan, Plaintiffs did not
need to allege that [the] Bank knew or should have known of the public sources at the pleading
stage. . . . Such a requirement at this juncture would be too exacting.” Honickman, 6 F.4th at
501 (citing Kaplan, 999 F.3d at 865). What is required is what plaintiffs have pled here:
“allegations of the facts or events [plaintiffs] claim give rise to an inference of knowledge.”
Kaplan, 999 F.3d at 864. Accordingly, plaintiffs have pled sufficient facts to satisfy the general
awareness requirement for imposing JASTA aiding and abetting liability.
C. Knowing and Substantial Assistance
Plaintiffs also plausibly plead that Kuveyt Turk knowingly and substantially assisted the
principal violations at issue in this lawsuit. “The knowledge component is satisfied if the
defendant knowingly – and not innocently or inadvertently – gave assistance.” Honickman, 6
F.4th at 499-500 (quoting Kaplan, 999 F.3d at 864) (cleaned up). The court in Halberstam “did
not require [the defendant] to ‘know’ anything more about [the criminal’s] unlawful activities
than what she knew for the general awareness element.” Honickman, 6 F.4th at 500. As
discussed above, plaintiffs have sufficiently alleged the general awareness element to survive a
motion to dismiss, and in light of Kuveyt Turk’s mechanisms in place to avoid doing business
with terrorist organizations, plaintiffs have plausibly alleged that the Bank knowingly assisted
Hamas.
Considering the six factors relevant to the substantial assistance inquiry, “(1) the nature
of the act encouraged, (2) the amount of assistance given by defendant, (3) defendant’s presence
or absence at the time of the tort, (4) defendant’s relation to the principal, (5) defendant’s state of
mind, and (6) the period of defendant’s assistance,” Kaplan, 999 F.3d at 856 (quotation omitted),
plaintiffs meet this requirement as well. For many years before and even during the time of the
terrorist attacks, Kuveyt Turk continued to provide banking services to three customers with
many known connections to Hamas’ violent terrorist activities, one of which was identified as a
terrorist organization and a member of the Union of Good by the Israeli government. Despite
this designation, the Bank continued to do business with IHH, further demonstrating the bank’s
state of mind and close relationship with an entity known as a conduit for Hamas. And, on
several occasions, the Bank transferred at least hundreds of thousands of Eurodollars in the name
of IUG, a Hamas-controlled institution – at the direction of a Hamas Minister, who also served as
the university’s Chairman of the Board of Trustees and another individual designated as an
SDGT by the U.S. government for being a Hamas fundraiser. These factual allegations are
sufficient at this stage.
CONCLUSION
For the foregoing reasons, plaintiffs’ motion for reconsideration is granted. The Court’s
decision dismissing the case for lack of personal jurisdiction is VACATED. Defendant’s motion
to dismiss is denied, except as to the personal jurisdiction issue, the decision on which is deferred
pending discovery. The Court further orders that jurisdictional discovery will proceed
simultaneously with discovery on the merits. Within fourteen days of entry of this Order, the
parties shall submit a proposed discovery schedule.
SO ORDERED.
U.S.D.J.
Dated: Brooklyn, New York
January 15, 2025
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